Happy Constitution Day

What’s the most important day in American history? Most of us would answer the Fourth of July. But think about today, Sept. 17.

For on this date in 1787, the convention in Philadelphia completed work on one of the greatest acts of creative leadership of all time, “this Constitution of The United States.” The framers rescued America from what James Madison later described as “so gloomy a chaos” and set the world marching toward what we can now see as the Age of Democracy.

Yet there will be no parades today, no picnics or fireworks. Perhaps a library somewhere is sponsoring a talk, but Constitution Day will pass largely unnoticed. Americans have, over the past 40 years, drifted away from a connection to our Constitution, the document that invented the United States as we now understand it and helped it to become the longest enduring democracy in history.

Sadly, this is largely true, but I don’t think a parade is necessary. All you really need to do is read the document itself, and ponder what has become of it.

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http://www.no-treason.com Joshua Holmes

“But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” Lysander Spooner, The Constitution of No Authority

Bob

Unless the citizens are welling to defend it no constitution can stop the march of tyranny. In our country most people have not been willing to defend the Constitution. That’s not a knock on the Constitution but it is on the American people.

Buckwheat

Hey Mataconis, the new Gallup poll came out today and Ron Paul is at 4%. Romney is at 7%.

“The full poll results are here, and also show that Ron Paul dropped back down to 1% after being at 3% last month, this the lowest Paul has polled in the Gallup poll since the beginning of June.

This is disappointing because it seemed like Paul had started to gather at least some support that was being registered in the national polls over the summer.”

tkc

The only problem is the preamble. The Constitution, while meant with the best of intentions, is based on a false premise. That false premise is, “We the people…”. Who are ‘we’? Nobody ever asked me.

See No Treason by Lysander Spooner for the rest of the argument.

Eric

Of course the preamble is not actually binding, it’s just pretty, poetic language.

Chris Kachouroff

Eric

Sorry, it’s not just pretty language. We the People doesn’t mean, “We the Canadians and Mexicans too.” And TKC, it binds we the people “of the united States” for ourselves and our posterity. That is not a false premise. Of course, it doesn’t bind you to anything.

Buckwheat,

Mataconis has done more for Ron Paul than you have I bet. If you have done something for Ron, what is it? How have you helped?

http://www.thelibertypapers.org Doug Mataconis

Chris,

I agree with you that the preamble does mean something, but I think Eric has a point as well.

For example, there are those who would use an open-ended phrase such as “promote the general welfare” to argue that the Federal Government has the authority to provide health care for every American citizen notwithstanding the fact that nothing in the text of Article I even come close to suggesting that.

http://www.thelibertypapers.org Doug Mataconis

Buckwheat,

I do have a life so, no, I have not seen the Gallup poll you refer to.

Actually, that little phrase “We the People of the United States” has been used to produce some pretty devastating results. Remember the good old Fifth Amendment “No person shall be held to answer…”? Well, that “No person” doesn’t actually mean “No person”. It really means “No citizen”. The President can do anything he pleases to foreigners. Why? Because the Fifth Amendment was written for “We the People of the United States” and all that stuff about rights applies ONLY to us. That, at least, is the reasoning behind some of the court decisions permitting all sorts of abuses of foreigners.

Chris Kachouroff

Chepe,

I have to know. Are you blogging in this forum because you’re eager to argue or do you actually believe this stuff you post?
Abuses? What abuses….

The Constitution DOESN’T protect anyone who is not a citizen. Notwithstanding, it still doesn’t permit government to operate outside the grant of its authority.

http://www.lunchworks.net Jeff Molby

The Constitution DOESN’T protect anyone who is not a citizen.

Then why does the bill of rights always refer to “persons” instead of “citizens”?

The document was written by some very bright legal minds. Surely they would have known that someone might notice that the two words don’t mean the same thing.

Chepe Noyon

Chris, allow me to quote to you the Fifth Amendment to the Constitution:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

Now, I ask you, are the people being held at Guantanamo “persons”? Are they being deprived of liberty without due process of law? If an American citizen were being held at Guantanamo, why should his citizenship make any difference? Would it be Constitutional to deny him liberty without indictment by a Grand Jury?

http://www.federalrepublic.net Adam Rodriguez

Chepe,

The 5th has somewhat been backed up by the 14th in that those within the “jurisdiction” of the United States are granted equal protection and due process. Now, most courts will claim that U.S. citizens and legal residents fall within U.S. jurisdiction and are thus entitled to Article III courts. The question here ought to be, does U.S. jurisdiction extend to the foreign people being held at Guantanamo because they are held in U.S. facilities? Or does the U.S. Constitution not even apply to them? Something to think about.

tkc

Eric, if the preamble is just pretty, poetic language then what does that say for the rest of it? If it is not “We the people…” then who does it apply to? I would argue that the answer is no one. Or, at least, only those who would take an oath to live by it, aka, give their consent.

Chris, where does the power of the Constitution to speak for me without my consent come from? It can’t be just because they said so in the pre-amble. That would be no different than something along the lines of a divine right of kings.

I’d like to restate, I’m not trying to trash the Constitution. I think it tries to make the best of a bad situation, that situation being the formation of a government. Sadly, from the looks of things today, it appears to have failed in its efforts.

Chris Kachouroff

TKC, You are confusing the preamble and constitution as though these documents somehow bind you to anything. If it required the consent of every generation, we would end up like the French.

I couldn’t disagree with you more when you say that it failed. The Constitution didn’t fail us. It’s still there. All we have to do is keep it. That is where your consent comes in. Recall what Franklin said when asked by his constituents, what have you made? His reply, “A Republic, if you can keep it.”

Chepe, the definition of the word “persons”, by construction of the text, is limited by virtue of whom the document was created for—-for ourselves and our posterity. I won’t quibble with you that a human being must be treated as such, whether a citizen or not,. However, I don’t necessarily think the Constitution requires us to give all the legal protections to those for whom it was not intended to apply.

The 14th Amendment does not change that. In terms of those being held in Gitmo, they need to be tried and if found guilty, hung. But since war was never declared, and therefore, no enemy known, I don’t think these folks can legally be tried under military law. After all, how do you prosecute someone you’ve never declared war against….hmmm?

Chepe Noyon

Yes, Adam, the courts have been really squishy on the point your raise about people held by the military offshore. On the one hand, they rightly see this as a necessary extension of the military’s right to take POWs. However, we’re talking about a real legal morass in the case of Guantanamo, because there is no declared state of war, they are not being held on the battlefield, major combat operations have ended, and they are not declared to be POWs. In such a case, I would expect them to fall back on the certainties of Constitutional law. However, as I pointed out, the “We the People” argument is used by some Constitutional scholars to justify Guantanamo.

Chris Kachouroff

JEFF

That is a great question. The constitution refers to persons and citizens because of the issue of slavery and apportionment of representatives.

So the final answer I would think, rests on what must be true: that if one is within the legal jurisdiction of the federal government, one is a “person” entitled to its protection. A person not engaged in a federal activity could not be a person for 5th Amendment purposes….

A good series of cases on this is the Slaughter House cases…Justice Miller. I’ve not read them in quite a long time but I think they’re on point and logically sound if I recall.

Chepe Noyon

Chris, your argument that the word “person” in the Fifth Amendment must be interpreted is exactly the kind of argument that I find so disturbing. If the plain text of the Constitution can be interpreted away so easily, what’s the point of having a Constitution?

I’m not arguing against subtlety where the Constitution is unclear. I have never had any problem with the Roe v Wade reference to ‘penumbras’, because the Constitution really doesn’t speak to the issue of abortion. But where the Constitution is loud and clear, as in the reference to “No person”, I have a real problem with interpretations that seek to contradict its plain meaning.

Chris Kachouroff

Chepe,

One need not fall back on the “We the People” argument. These folks at Gitmo are not entitled to the protections of the Constitution. With that said, those folk at Gitmo aren’t badly treated. It could be worse. They could be getting their heads cut off and etc. You know that side of it.

The far more important question is quo warranto, by what right do we claim anything over them….If nothing, then we have no right to keep them in the Hilton hotel or a pig sty. Military law can’t apply because they aren’t “POW”s.

Chepe Noyon

Chris, perhaps I have misunderstood your position here, as your latest post suggests that you do in fact regard “person” as applying to any and all human beings under the control of the Federal Government. Is this in fact the case?

Chris Kachouroff

Chepe,

Have you read Joseph’s Story’s Commentaries? You would be well served to consider them.

I have concluded that the Bill of Rights was a bad idea. It muddied up a perfectly good Constitution. But we have it now. And by rules of construction, which I’m sure you’ve at least heard of, we don’t interpret things “away” easily. If a judge has the power, he declares the law. If he doesn’t, he can’t go forward whatever his frustration may be.

With the penumbral emanations of Roe v. Wade, I do have a problem because it becomes a question of whose penumbras….that is not constitutionally sound.

But let me address your argument, does the word “Person” and the Bill O’ Rights allow the United States to go into a foreign land and start war for those folks too? I mean, are you going to deny these “persons” our federal rights?

Chepe Noyon

Chris, we’ve been cross-posting and we’re out of phase. Your 8:39 post asserts that the prisoners at Guantanamo have no Constitutional protections. Yet, earlier you write, “if one is within the legal jurisdiction of the federal government, one is a “person” entitled to its protection.” Apparently you are making a distinction between legal jurisdiction and operational control. This distinction means that the Executive Branch can exercise its powers in territories where the Judicial Branch cannot exercise its powers. This, it seems to me, completely undermines the entire concepts of separation of powers and checks and balances.

Chris Kachouroff

Chepe,

I would say that these folks either fall under federal jurisdiction or they are being held unlawfully, against “the laws of nations”….

I don’t see where we have them at all, legally. There are some who would say they’re “terrorists.” But what does that mean? I haven’t a clue. All criminals are terrorists. Just because you’re fighting American soldiers doesn’t mean you’re a terrorist. You may be an enemy but that depends on whether you’ve declared war…

Chris Kachouroff

Operational control rests on legal jurisdiction, no? I don’t think the federal government has a legal right to hold them. Your 5th Amendment argument works against you. NO person shall be held EXCEPT in times of war or under martial law….This is where the ninth amendment comes in. It’s a rule of construction.

tkc

Chris, even with the assumed consent ‘we’ are becoming more and more like the French. Thus the comment about the failure of the Constitution. Of course, it in itself, did not fail. It is an inanimate object. It was the failure of the people who swore to uphold it that has brough about it’s demise.
As for Mr. Franklin, I was never one of his constituents. Maybe his constituents did keep a republic and maybe they didn’t, the point still remains, where did the power to assume to speak for me come from? If it is not “We the people…” in the pre-amble then there is a problem. Namely, the lack of consent.
Furthermore, even if the consent is assumed, and those that swore to uphold the Constitution have not then what, if any, obligation to them or the Constitution do I have? I say none.

Chepe Noyon

Chris, it appears that we are in agreement that the imprisonments at Guantanamo are illegal, but we disagree as to why. While there are some interesting issues raised by our differences, I won’t pursue them, as they turn on some very fine points of law, and resolving those differences would take a very lengthy analysis.

Instead, I’d like to turn to the much simpler question that tkc asks concerning the obligation he owes the Constitution, not having given his consent to it. The answer is really quite trivial: the Constitution is now the established law in the territory of the United States. If you do not wish to give your consent to it, you are welcome to live with it, attempt to amend it, violate it and undergo whatever legal penalties this costs you, or depart from the territory it controls. Quite simple, really.

tkc

Chepe, your answer flies in the face of the idea that life and liberty are inalienable rights. I should not have to amend, violate, undergo legal penalties, or depart from a territory to secure them. If I have to do such things then obviously life and liberty are not inalienable rights.

I especially take exception to the idea that I should depart. Liberty is not a geographical idea. The love or leave it attitude is one of a bully who means to rule over you and if you don’t like it then you are free to flee. Call me nutty but I thought the idea of limited government under the Constitition was to protect rights, not to force me to take action against those sworn to uphold the Constitution. If such is the case then the Constitution is a dead letter.

Chepe Noyon

tkc, I suggest that you do indeed have inalienable rights to life and liberty, and that these rights are established in the Constitution. The problem, I suspect, is that the liberties in the Constitution are insufficient to you. If that is the case, then the options I presented above apply. Can you be more specific about your expectations?

tkc

Chepe, I think you have it backwards. Inalienable rights, such as those of life and liberty, exist whether there is a Constitution or not. The idea behind legitimate government is to protect those rights and not to become the vehicle with which to crush said rights.

My expectation of the Constitution is not to grant me anything (especially such things I do not consent to). The idea behind a legitimate limited government is to protect people from the predations of unethical men and not to become the vehicle for such predations. If I must amend, violate, undergo legal penalties, or depart from a territory to secure my life and liberty based on implied obligations under the Constitution then the claim to ‘secure the blessings of liberty’ is an outright lie. The Constitution, which should protect my inalienable rights, becomes the hammer with which to destroy them.

Chepe Noyon

tkc, the main point I was attending to was your plaint about being obligated to acquiesce to a Constitution that you never gave consent to. I consider that complaint to be without merit. You raise many other points, which may be worthy of discussion, but the key point I’d like to resolve, and that I think is easily resolved, is the notion that the Constitution rightly applies to you despite the absence of your explicit consent.

http://pubcrawler.blogspot.com/ tkc

We have been rambling a bit, so, how does the Constitution rightly apply to me without my explicit consent?
Love it or leave is a bully’s response. For me to attempt to amend or modify an agreement to which I am not a party to is unethical. If you were to move in next door to me would I be able to imply a right that you need to wash my car simply because of your residency? That would be nuts. So why can government do this? Where do they get this power?

Stefan Molyneux explains better than I do:
“Furthermore, it is hard to imagine how just living in a country creates any form of implicit contract with the government. Implicit contracts are by their very nature unjust –and how do we know this? Because private citizens are not allowed to create and enforce implicit contracts. I can’t say to my neighbor that his decision to live in his house automatically requires him to mow my lawn. I can’t buy a car, offer to share it with my neighbor and then force him to pay for half of it. Anything which is unjust for private individuals is also unjust for those in the government – since the government is merely composed of individuals, and thus must be subject to the same moral laws as everybody else. Any rights or abilities claimed by those in power which directly oppose the rights or abilities of everybody else are automatically unjust and immoral.”http://www.lewrockwell.com/molyneux/molyneux17.html

Chepe Noyon

OK, perhaps we are at last getting to the nub of the disagreement. The government of a society exercises sovereignty over its territory. That sovereignty springs from the people as a whole, and it applies to each person inside that territory. I will not argue with you whether it’s right or wrong; I will simply observe that, if governments weren’t granted sovereignty over their territory, the population of the human race would be a few tens of millions and global GDP per capita would be on the order of a hundred bucks per year.

http://pubcrawler.blogspot.com/ tkc

I understand that government can have sovereignty over a territory but where does it get it’s sovereignty over an individual? It must come from consent. Consent is a pre-requisite for a legitimate government.

You’ll never get me to agree that consent can be assumed by government (that would be too much like a divine right) or that it can be implied (which is unethical).

http://pubcrawler.blogspot.com/ tkc

“I will simply observe that, if governments weren’t granted sovereignty over their territory, the population of the human race would be a few tens of millions and global GDP per capita would be on the order of a hundred bucks per year.” Not to get off on a tangent but I disagree with this notion. If I could wave a magic wand and make government disappear would all individual motivation cease to exist? I seriously doubt it.

Chepe Noyon

No, there is no individual consent. There is group consent. Is this right? I won’t try to determine right and wrong. Again, I’ll simply say that, if we refuse to grant sovereignty to governments, then almost everybody dies.

You seem to think that without government, things would be just hunky-dory. The historical record is quite clear on this point. There is no case in history in which government was entirely eliminated; in every case where government disappeared, strong men appeared and used violence to establish their own government. And in those cases where the overall rule of government declined, so did the population.

http://pubcrawler.blogspot.com/ tkc

Chepe, do you agree or disagree that a pre-requisite of legitimate government is the consent of the governed? If there is no individual consent then the government is not legitimate. There is only group consent if everyone in the group gives it or consents to go along with what everyone else decides. The pre-amble of the Constitution does neither. It either assumes consent or implies it, both of which are illigitimate. I cannot give your consent without your approval. If I cannot do such a thing individually then how can I manufacture such a power collectively?

When it comes to government I cannot think of an institution that has deliberately killed more people for the shallowest of reasons.

Chepe Noyon

No, I don’t accept that reasoning; your notion of legitimacy is impossible to obtain. I think that a government is legitimate if it enjoys the loyalty of the great majority of the people.

http://pubcrawler.blogspot.com/ tkc

Chepe, that legitimacy is not impossible to obtain. People do it all the time in their daily business. There are people you will work with. There are people you won’t work with. You give your consent to the former and not to the latter. You are free to choose. You do it all the time and it is such second nature that I’ll wager an ice cold lager that it doesn’t cross your mind when you do it. Consent is simple to obtain.

The majority of the people can never lend legitimacy so long as one person dissents. If the majority were to dicide, 300 million to 1 that you must forfeit your life for ‘the greater good’ then even such an overwhelming majority is acting unethically.

I think that you are promulgating a notion of morality that is unrealistic. If 300 million people want to kill somebody in their country, there is nothing in creation that can prevent them from doing so. It would be wonderful if everybody agreed on things, if every politician were elected with a 100% vote, if every bill in Congress passed with unanimous acclamation, if people never had disagreements over contracts and people never committed crimes. But these things do happen and law is the only way to sort out the conflicts that divide us. What you promulgate is anarchy, and anarchy doesn’t work.

http://www.pubcrawler.blogspot.com/ tkc

It is not morality that I am speaking of, it is ethics. That I cannot stop the 300 million from killing the 1 is true, regardless, it still makes the 300 million unethical. Just as assuming consent for a person who actually withholds it is unethical, 300 million people deciding otherwise does not confer legitimacy to an unethical act.

Anarchy works better than you give credit. The invisible hand of the free market is a good example of anarchy working just fine. Take, for example, what everyone in the country had for breakfast this morning. 300 million people decided what they wanted and just about all of them got it. There is no majority going around saying Tuesday is bagel day and you must comply. Even if there was such a majority, if you wanted a doughnut this morning then chances are you had no problem finding one. People voluntarily consent to all manner of things all the time and it works smoothly. So why disregard this in the name of something that is unethical at its roots?

Chepe Noyon

OK, you’re promulgating a notion of ethics that is unrealistic. Let me present a ridiculously simple example of how unworkable your thinking is:

Joe Bully murders you. He is arrested, indicted, and convicted. But then he declares, “I never gave my consent to the laws against murder. You cannot hold me.” Using your logic, everybody agrees and Joe Bully walks free and murders more people.

http://www.pubcrawler.blogspot.com/ tkc

If Joe Bully murders me then what right does anyone have to conscript you, or anyone else, to do something about it? None.

You may volunteer to do something about it, and in the case of murderers, complete strangers to me may take up the cause, most likely for the purpose of their own safety.

Have you ever read ‘The Moon is a Harsh Mistress’? If so then the trial in that work is a good example of justice without government.

http://www.pubcrawler.blogspot.com/ tkc

Also, just because there is no government authority doesn’t mean Joe Bully can ignore other people’s inalienable rights. Life is one them.